Question:Because there is DNA testing now, doesn't this solve a lot of the problem
with eyewitness identification evidence?

Answer:Definitely not. Only a very small fraction of crimes can be solved
with DNA testing. The vast majority of perpetrators in assaults and murders
and virtually all robberies, drive-by shootings and other major crimes
do not leave behind definitive biological trace evidence that can show
that the eyewitness was mistaken. The need for reliable eyewitness evidence
is not significantly diminished by the advent of forensic DNA tests. The
Gary Graham case in Texas, in which he was executed based largely on a
single (and very questionable) eyewitness identification, is more representative
of the actual state of affairs. Like most all eyewitness cases, there was
no biological evidence in the Graham case to be analyzed. Every year, over
77,000 Americans become criminal defendants after being identified by an
eyewitness. Perhaps a few thousand of these can now be resolved one way
or another using DNA tests. The remaining tens of thousands rely on the
diagnosticity of the eyewitness identification procedure to produce the
appropriate result.

The DNA exoneration cases are almost exclusively cases of sexual assault
because those (sexual assault cases) are the cases in which definitive
biological evidence tied directly to the perpetrator is left at the scene
of the crime. As my former student and current friend and colleague John
Turtle said: "Unless the guy robbing that 7-11 store gets pretty damned
excited, he's not going to be leaving behind any biological fluids."

Question:The New York Supreme Court recently ruled that testimony by eyewitness
experts can be permitted at trial. Isn't expert testimony the answer to
this problem?

Answer:No. Although many have suggested that the appropriate answer to the
eyewitness problem is to permit testimony by eyewitness experts in cases
that rely on eyewitness identification evidence, there are several reasons
why this is not a significant answer to the eyewitness reliability problem.
First, there are too few experts to actually service this problem and expert
testimony is expensive. Also, although an expert can cite various factors
that make eyewitnesses more or less reliable, no one, even an eyewitness
expert, can tell whether this particular eyewitness made a mistake. Once
an eyewitness identification error has occurred, it has most of the same
appearances that an accurate identification has. Borrowing a quote from
the brilliant Boston defense lawyer James Doyle "The scientific eyewitness
literature can tell you that something happens 80% of the time, but it
cannot tell you whether a given case is one of the 80 or one of the 20."

It is true that eyewitness identification evidence is less reliable
than jurors believe it to be. However, instead of bringing jurors' beliefs
about the reliability of eyewitness identification evidence down to the
current level of eyewitness reliability, we need to bring the level of
eyewitness reliability up to the level that jurors expect it to be. The
best policy for the legal system to adopt is one of prevention of eyewitness
identification error, not catching eyewitness identification errors after
they have occurred.

Question:Your research shows that the methods that law enforcement uses for
conducting lineups is contributing to mistaken identifications and false
confidence by eyewitnesses. Since the scientific evidence is now clear
that sequential lineups are better and that blind testing should be used,
why isn't the legal system adopting these new procedures?

Answer:That is a simple question, but the answer is compound. First, keep
in mind that some jurisdictions are now (finally) changing. The most prominent
example is the state of New Jersey. New
Jersey has now adopted blind testing and sequential lineups for all police
in the state (see New York Times article). However, New Jersey is clearly
the exception for two reasons. First, unlike other states, the Attorney
General of New Jersey has authority over all police in the state of New
Jersey. Second, New Jersey AG John Farmer has an excellent staff (I particularly
commend Lori Linskey and Debra Stone) who have pursued this matter vigorously
and AG Farmer had the good judgment to exercise his authority to issue
instructions to NJ police requiring them to use sequential lineups, blind
testing, and other safeguards that we have been advocating. This method
of adopting better lineup procedures cannot happen in other states. The
Attorneys General of Kansas, or Pennsylvania, or New York, for instance,
have no authority to order police in their states to adopt particular procedures
for gathering evidence. In some places, such as Philadelphia and New York,
there have been concerted attempts to have judges order the police to conduct
lineups in ways that we have shown to be more reliable, but these efforts
have been stalled by opinions that say that judges have no authority to
order these things.

In some jurisdictions, prosecutors are openly opposing any declarations
that would suggest that sequential lineups and blind testing are needed.
They seem to be driven by a concern that such declarations might raise
doubt about people they have prosecuted or open up lines of appeal for
people who have been convicted using the riskier procedures. It seems similar
to the way some prosecutors have been opposing people's calls for post-conviction
DNA testing. I believe that the opposition by subsets of prosecutors will
ultimately fade, especially when they begin to appreciate the way this
can make the evidence they use at trial more credible. But this opposition
accounts for some of the slow progress.

The fact is that we just do not know at this point how to effect change
in the methods by which lineups are conducted. Some change is happening
at the level of a few individual police departments. In Clinton, IA, for
instance, the police chief ordered his officers to follow the NIJ Guide
for conducting lineups. There are, however, over 13,000 police departments
in the U.S. that operate largely autonomously. How to affect large numbers
of these departments in a short period of time (like is happening in New
Jersey) is an open question. Influential people (such as judges, legislators,
police chiefs, county prosecutors) are going to have to step up to the
plate.

Question:How often do eyewitnesses identify the wrong person from lineups in
actual cases?

Answer:No one really knows the answer to this question. However, recent field
studies show that eyewitnesses select a known-innocent "filler" from a
lineup 20-25% of the time in actual criminal investigations. [A filler
is a member of the lineup who is not a suspect. Fillers are used in lineups
merely to "fill out" the lineup so that the eyewitness is not shown just
one person.] It turns out that the 20-25% rate of filler identification
is probably a conservative estimate because police often record filler
identifications as "eyewitness could not make a positive identification
of suspect," which tends to get counted as "no identification."